Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Regina v Tangisi [2008] SBHC 108; HCSI-CRAC 73 of 2006 (2 February 2008)

HIGH COURT OF SOLOMON ISLANDS
(Naqiolevu, J)

Criminal Case No: 73 of 2006

REGINA

V

JOHN TANGISI

Date of Hearing: 6-17 August 2007
Date of Judgment: 2 February 2008

For Crown: Mr. M. Unagui
For Accused: Mr. P. Southey

REASON FOR DECISION

Naqiolevu J: The applicant was charged with the offence of Murder contrary to Section 200 of the Penal CODE. The initial charge was that of Manslaughter contrary to Section 199 of the Penal CODE. The charge was then changed to Murder which is the subject of this application.

APPLICANT'S SUBMISSION

1. The applicant through his counsel seek the Stay of Proceedings against him given the exceptional charge or combination of circumstances. These relate to the delay in upgrading the charge which was lengthy and occurred through no fault of the applicant and occurred for no good reason.

2. The applicant justifiably feels that he has been treated unfairly. The charge appears to be in clear breach of the Constitution which provides that a person shall be informed as soon as reasonably practicable and in detail of the charge he is facing.

CROWN'S RESPONSE

3. The crown in response submit that the defendant was initially charged by the police for Manslaughter, however it took considerable time for the police to conduct its investigation.

4. At the Preliminary Inquiry the charge was changed to Murder based on the information the police obtained from the witnesses. It was a short Preliminary Inquiry and the defendant was committed on the evidence presented, same evidence show the basis of the information filed in the High Court.

5. The crown maintain the Preliminary Inquiry is an administrative process for determination of the sufficiency of evidence on a serious criminal charge then preferred at the inquiry. It is not there to determine guilt or innocence. If the defendant had considered that there was an abuse of process in the Preliminary Inquiry, he should have applied for Judicial Review of the Magistrates decision. He has not done that and allow the process of inquiry to take its course, therefore it's not an abuse of process.

6. The crown further maintains the power of the DPP to institute and undertake criminal proceedings is governed by Section 91 (4) of the Constitution and Section 233 of the Penal CODE. S. 91(4).

Section 233

7. The DPP is given the power under 233 (2) to charge an accused person with an offence which, in his opinion, is disclosed by the evidence presented at the Preliminary Inquiry and upon which the defendant was committed for trial, even if the accused had been committed for Manslaughter at the Preliminary Inquiry, it is still open for the DPP to lay an information on a charge of Murder if such offence is disclosed by evidence tendered at the Preliminary Inquiry, and upon which the accused was committed for trial.

8. FACTS

The applicant was charged with the death of the victim whom he had been involved in a fight on the 2nd of August 2004, and remanded in custody.

9. On the 6th of October 2004 some 2 months later he was granted bail with conditions. The applicant complied with the conditions of bail for the balance of the year 2004, through 2005 and early part of 2006.

10. The proceeding for Preliminary Inquiry was conducted on the 20th of February 2006 at the Gizo Magistrate Court, when he was represented by Ms. M. Swift.

11. On the morning of the Preliminary Inquiry prior to commencement a Sgt Forau of Gizo Police handed the applicant a new charge sheet, charging him with Murder.
    

12. From the date of his arrest on the 1st of August 2004, up to the date of the Preliminary Inquiry some 18 months period, the applicant had been charged with the offence of Manslaughter. Then without explanation he was suddenly charged with Murder and his bail revoked.

Stay of Proceedings

13. The Principles to be considered in an application for Stay of Proceedings are well established, and the court has an inherent jurisdiction to stay all proceedings which are frivolous or vexatious, or an abuse of the process of the court.

14. In Billy Kelly Kelly –v- R([1]) the Court of Appeal said, "There can be no doubt of the existence of a jurisdiction in the court to stay criminal proceedings for abuse of process. All the leading common law jurisdictions recognize this to be so". It is enough to refer to Jago –v- District Court of New South Wales (1989) 169 CLR 23 (Australia) R – v- Croydon Justices exp Dean (1993) QB 769 CA, England, which relies on what was said by Richardson J in Moevao –v- Department of Labour (1980) NZLR 464, at 482, "No one doubts the breach of the power or the variety of circumstances capable of being considered in exercising the jurisdiction. So far, the cases have been concerned mainly with excessive delay, inferior motives for instituting or continuing prosecutions, breach of undertakings not to prosecute, and the like, although these categories are by no means to be regarded as closed or exhaustive". Underlining mine.

15. Mr Southey submit on behalf of the applicant that the inability to receive a fair trial is not the only basis for a stay of proceeding and indeed not asserted in this case that the applicant cannot receive a fair trial.

16. Counsel claim there are other recognized categories in which there is no requirement to demonstrate a fair trial cannot take place. It is submitted that if a defendant is given to understand for a considerable period of time that he is not to be prosecuted for a certain offence then that would fall within one of the categories in which a permanent stay may be granted without the necessity to illustrate prejudice. This is because the prosecution's conduct gives rise to a legitimate expectation on the part of a Defendant which is worthy of protection.

17. Counsel submit the average citizens sense of fairness will be deeply affronted by the unfairness of charging the applicant with Murder long after the authorities had seen fit to charge him with Manslaughter only.

18. Counsel, further submit that the factors that need to be considered in this case to enable the court consider the application are:

Delay

19. The defendant did not contribute to the delay which led to the charge being changed to Murder after 18 months. The delay is entirely attributable to the investigating and prosecuting authorities, who did not make a decision for more than a year.
    

New Evidence

20. No new evidence has come to light which should change the prosecution's view, all the important eye witnesses statements and the statement of arresting officers and the doctor who examined the deceased taken in 2004, remain the same. Most were taken in 2004, within days of the incident, there simply no excuse for the delay.

21. The Constitution require that every person charged with a criminal offence shall be informed as soon as reasonable practicable of the nature of the offence. Section 10. (2) (b)

22. The expectation created in the mind of the applicant that if 18 months has passed with his being charged with Manslaughter and no more, that the charge would stay.

23. Interference with Liberty

The applicants liberty have been seriously interfered with on the various occasion in which he has been remanded in custody and bailed and clearly the prospect of being remanded into custody the third time is an embarrassment to the judicial system.

24. Erosion of Confidence in the Administration of Justice

The public counsel claim will tend to lose confidence in the prosecuting authorities when they conduct prosecutions in such a tough way and the confidence would extend to the court that hears the matter.

Power to Stay Proceedings

25. Clearly the court in considering whether to exercise the power to stay a proceeding must have regard to the requirement of fairness to the accused, the legitimate public interest in the disposition of serious charges and in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice.

26. The circumstances that will lead a court to exercise this jurisdiction have variably been described as exceptional or rare. It is a power that should be used sparingly and with the utmost caution. Jago –v- District Court NSW Gordon J. "it is a jurisdiction which will only be exercised where it is readily apparent that it should be exercised to prevent prosecutional oppression".

27. The Privy Council in BELL v The Director ([2]) of Public Prosecution (Jamaica) identified four facts the court should assist in determining whether a particular defendant has been deprived of his rights. They are:

(1) Length of delay

"Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge'

(2) The reasons given by the prosecution to justify the delay:

A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay...

(3) The responsibility of the accused for asserting his rights:

'Whether and how a defendant assets his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain'

(4) Prejudice to the accused:

'Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defence will be impaired. Of these, the most serious is the last... If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice of defense witnesses are unable to recall accurately events of the distant past. Loss of memory however, is not always reflected in the record because what has been forgotten can rarely shown'.

28. The applicant maintain that the combination of circumstances in this case is truly exceptional, the delay in upgrading the charge was lengthy and occurred though no fault of the applicant and for no good reason. The applicant justifiably feels that he has been treated very unfairly and any right thinking member of the community would agree. The circumstances in which the charge was upgraded were most unfortunate and have the capacity to seriously erode the public's confidence in the administration of Justice. It is in clear breach of the Constitution which provides that a person shall be informed as soon is reasonably practicable and in detail of the charge he is facing.
    

Judicial Review

29. The court is of the view that to proceed by way of Judicial Review as suggested by the Crown is inappropriate and an application for stay at the commencement of a trial is proper in the circumstances. This is more appropriate given the trial process itself is equipped to deal with the bulk of the complaints Refer to Lord Lone CJ in Attorney Generals Reference ([3]). In R-v-Croydon Justice ([4]) Staighbn LJ said at p 79.

No doubt many of the complaints which the Lord Chief Justice there referred to related to the admission or rejection of evidence and similar matters. But I do not regard his ruling as limited in that way. The case itself was, as I have said, concerned with delay. Lord Lane C.J. said later, at p. 302 and p. 643, "Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances." I accept and follow those principles without question, as we are bound to do. In-deed I consider that the application in the present case should almost certainly have been made to the Crown Court at trial, rather than by way of judicial review. In addition to the cases already cited, there is support for that view, in Barnet Magistrates' Court, ex p. Wood [1993] Crim. L. R. 78, where it was said that only in exceptional cases should committal proceedings be quashed once an indictment has been signed and the defendant arraigned.

I adopt the principle of law as enunciated by Staghbn LJ as appropriate in this instance.

Power of DPP to Investigate Proceedings

30. The court is of the view that the power of the DPP to institute and undertake criminal proceedings is clear under Section 91 (4) (a) of the Constitution.

Furthermore the power is expanded under section 233 of the Criminal Procedure CODE, which sets out the procedure. The power clearly is precise and unfettered and which may be exercised at any stage of a trial.

31. The exercise of the power however is of vital importance, and clearly the issue in this application.

32. The circumstances of the case clearly reveal the applicant was charged with the offence of Manslaughter as a result of the police investigations after interviewing witnesses immediately after the incident in August 2004. The applicant was initially remanded and released on bail and for a period of 18 months he accepted the charge will continue to the various stage to trial.

33. At the Preliminary Inquiry he was suddenly charged for the more serious offence of Murder and remanded in custody.

34. The applicant quite rightly feel a sense of grievance and unfairness in the process.

35. The court is of the view that the process adopted by the crown is clearly unacceptable and could amount to abuse of process.

36. The court is of the opinion that the applicant has clearly demonstrated on the balance of probability that the circumstances of the case are "exceptional" and "rare" which require the court to exercise the discretion to stay the proceeding in this instance. The court consider to proceed with the trial is an abuse of process and it has a duty to ensure public confidence in the administration of justice in this country is not eroded.

ORDER

The Proceedings against the application are hereby permanently stayed.

THE COURT

^[1] Criminal Appeal No. 19 of 2006, SI Court of Appeal
^[2] [1985] AC 937
^[3] No. 1 of 1990
^[4] (1994) CR. App. R